Holding onto my hat

Saturday, January 9, 2016

The recently reported decision
of Wham Kwok Han Jolavan v Attorney-General[1] has
clarified that police warnings are “no
more than an expressions of the opinion of the relevant authority that the
recipient has committed an offence”.
As such, there is no decision for the Court to quash.

In his written judgment, the
Judge made the following points:

That a
warning is not binding on its recipient such that it affects his legal rights,
interests or liabilities.[2]

The fact that someone has received a warning from the police clearly has
adverse effects on its recipient.

Firstly, the opinion of the police carries significant weight. The Judge in Mr Wham’s case said that a
police warning does not and cannot amount to a legally binding pronouncement of
guilt or finding of fact. Only a court
of law has the power to make such a pronouncement of guilt or finding of
fact. Saying that a recipient of a
police warning is to be presumed innocent until found guilty by a court of law is
talking small potatoes compared with the heavyweight pronouncement of guilt bellowing
from the Attorney-General’s Chambers.

Secondly, the warning is on record.
How long it will stay on police record before it is considered spent or
expired is unclear. It is also a mystery
to what extent other parties (government or non-government) are able to access
such information. Disclosure of a
recipient’s police record to other agencies will cause the recipient to suffer privacy
intrusion, personal embarrassment and reputational harm.

If for example, the recipient is applying for a government scholarship
or public-sector job, will those who are deciding his scholarship or job
application have access to his police record?
If so, then the recipient’s scholarship or job prospects will be
affected.

On 11 May 2013, 21 Malaysians were arrested for gathering illegally at
Merlion Park. Concerning their fate, the media reported [4]:

"The Police
will be issuing conditional warnings to all 21 Malaysians who participated in
the illegal gathering at Merlion Park on 11 May. Their employers will be
informed of this. The authorities have also initiated the revocation of the
work pass of one of these 21 persons for being involved in both the 8 and 11
May illegal gatherings. In addition, the
authorities have cancelled the visit passes of another two of them. As for the
remaining 18 persons, their work passes will be reviewed upon completion of
further investigations."

Hence, it appears that a non-Singaporean who receives a warning in
lieu of prosecution will be at risk of losing his job, of having his work pass
revoked, visit passes cancelled or being repatriated. Those are dire
consequences for non-Singaporeans who are living and working in Singapore.

Making public announcements of warnings given

There have been many instances where authorities have issued press
releases to inform the public that certain individuals have been issued with a
police warning in lieu of prosecution. In some cases, the recipient of the warning is
named in the press release while in other cases, the recipient is unnamed.

A press release by the Singapore Police Force on 10 August 2011 stated
that the Police had administered a stern warning to Ms Tin Pei Ling’s unnamed
friend for her breach of the Parliamentary Elections Act.[5]

On 23 June 2013, the Attorney-General’s Chambers issued a press
release[6] to inform the public that
they had issued a letter of warning to Ms Lee Seng Lynn for her having
committed contempt of court.

Has the police an unfettered discretion to decide when they wish to
make public the names and circumstances of individuals who have been issued
with warnings? What about the unwanted
attention and public humiliation the recipient has to suffer?

When someone’s name enters the public domain on account of having been
found guilty of a crime by the Attorney-General, the reputational damage is
immeasurable and long-lasting. How are
recipients in such cases going to deal with the court of public opinion against
them? Such a recipient pays a heavy personal price even though he has not been
convicted by a court of law.

So even though the Judge in Mr Wham’s case said that a warning is not
binding on its recipient such that it affects his legal rights, interests or
liabilities, clearly the issuance of a warning can cause permanent and
persistent prejudice to the recipient.

Recipients have no remedy against warnings

The Judge in Mr Wham’s case said that the recipient is entitled to
challenge the warning. He suggested that Mr Wham could have sent a letter to
the police to say that he disputes that he has committed an offence and that
the warning is inappropriate.[7] In fact, Mr Wham did write to the police and also
to the Attorney-General’s Chambers to protest the issuance of the warning
against him, but the police and the AGC never replied him.[8]

What good will it do for the recipient to write to the police to
object the issuance of the warning?

Of what the weight is the recipient’s opinion that he has not
committed any offence to warrant the warning compared with the weight of police
opinion that the recipient has committed an offence?

In any case, the decision in Mr Wham’s case is that a police warning
cannot be quashed by the Court.

All said, I am not sure I understand why the Judge said that the
recipient is entitled to challenge the warning because the recipient has no
recourse to the Court and in practical terms, there is little he can do at his
end to mitigate the adverse effects of receiving a police warning.

How are individuals safeguarded from wrongful issuance of warnings?

The police wield considerable powers over the individual. How the police
administers its powers on individuals and what are the safeguards against unprincipled
exercise of police powers on individuals are a matters of great importance to
the general public.

For when the lone individual is at the receiving end of the strong arm
of the law bearing down on him, we need to entrust him to the integrity of the
system and to have faith that the machinery will be applied to him in a
principled manner.

If individuals lack adequate protection from and recourses against
arbitrary exercise of police powers, the relationship between rulers and the
ruled will be strained and eventually the justice system will break down.

Present Situation

In respect of warnings, the following applies for now:

Warnings can be given only orally, without the
need for any formal document to be issued.

The warning may be given without requiring the
recipient's consent to being warned.

The warning may be given whether or not the recipient's
admits to having committed the crime.

Once given, a warning cannot be quashed by the
Court.

The warning is on record, but for how long the
record is kept by the police before it is considered spent or expired is not
known.

When, how and to what extent the police shares the
recipient’s record with other agencies is not known.

As to what control, if any, the recipient has
over what the police does with his record is not known.

When announcing to the public the fact that some
has received a warning, the police may, as it deems fit, disclose the name of
the recipient, the circumstances of the case and any other details.

Whether and to what extent the police needs to
consider the recipient’s personal detriment arising from the publication of his
name is not known.

An unsatisfactory ending

The judgment in Mr Wham’s case is like a story which has a beginning,
a middle but no ending. We are left hanging
at the cliff’s edge.

The Court says that warnings have no legal effects, but warnings are
prejudicial to its recipients. The police
is empowered to issue warnings, which the recipient is powerless to do anything
about.

I dearly hope that the decision in Mr Wham’s case is not the Court’s
last word on the matter of police warnings.
There is still a lot of plot holes to clear up, you know. And if the Court is not going to plug the
gaps, I am not sure who will.

About Me

Jeannette Chong-Aruldoss is a practising lawyer who earned her law degree in the United Kingdom. She also holds a Masters Degree in Corporate & Commercial Law from the London School of Economics & Political Science and was called to the English Bar in 1986.
Jeannette is happily married and a mother of four children.
She challenged the incumbent at Mountbatten SMC in Singapore's 2011 General Elections and garnered 41.38% of the votes cast.